Building a Green Maryland : Maryland Green Building Lawyer & Attorney : Megan Reuwer : O’Malley, Miles, Nylen & Gilmore Law Firm : MD Green Building, Sustainability

Efforts to grandfather certain development projects and to redefine the scope of "redevelopment" projects under the Maryland stormwater regulations have been diverged into two channels: one via emergency legislation (HB 1125), and the other via emergency regulations promulgated by MDE that must be reviewed by the Joint Committee on Administrative, Executive and Legislative Review.

Emergency Legislation:

House Bill 1125  passed the House of Delegates (127-13) on March 24, 2010, and is now scheduled for a hearing before the Senate Education, Health, and Environmental Affairs Committee on April 8, 2010 at 1:00. This emergency bill defines "redevelopment" as it pertains to the State’s stormwater management regulatory program and establishes specific stormwater standards that redevelopment projects must meet. The bill also grandfathers “development projects” that receive “preliminary plan approval” before May 4, 2010, from complying with stormwater regulations recently adopted by the Maryland Department of the Environment (MDE); for such projects, stormwater management plans are subject to the laws and regulations in effect at the time preliminary plan approval was received. The emergency legislation essentially incorporates the provisions of the Consensus Agreement reached among shareholders as discussed in this prior post.

Emergency Regulations:

On March 12, 2010, the Maryland Department of the Environment (MDE) submitted to the State Legislative Committee on Administration, Executive, and Legislation Review draft Emergency Regulations to address the application of new State stormwater management ("SWM") regulations. The Joint Committee on Administrative, Executive and Legislative Review (AELR) is charged, in part, with reviewing State agency regulations with regard to the legislative prerogative and procedural due process. The Committee is composed of ten senators and ten delegates who are appointed by the Senate President and the House Speaker at the beginning of each regular session. Members serve for one year. The Committee has scheduled a hearing on the emergency regulations set for Tuesday, April 6 at 4:00 pm.

I will continue to monitor the status of HB 1125 and the emergency regulations - these are both very important measures to address major industry concerns.

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Two weeks ago, we learned that stakeholders had reached a compromise regarding the grandfathering in of new stormwater management regulations to extend the implementation date for those projects in the pipeline that meet certain threshold qualifications (see this past post for details specific to the compromise). 

Now, we're hearing that the compromise might be...dead in the water.  The terms of the compromise agreement state that the revised regulations must be in place by April 12, 2010 (Sine Die), but it now appears as though the regulations might not make it out of the Joint Committee on the Administrative, Executive and Legislative Review (AELR) in time.

 HB 1125, whose scheduled March 10, 2010 hearing was canceled in light of the compromise, has been resurrected and a new hearing on this emergency legislation is scheduled for this Wednesday, March 24th, 2010 at 1:00pm before the House Environmental Matters Committee. This is a sponsor-only meeting and not open for public testimony.

There is a well-written article by Tim Wheeler, "Storm-water bill revived amid flak over compromise," published March 19, 2010 in the Baltimore Sun, that highlights various issues surrounding the status of the compromise.

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As many of you know, one of the biggest agenda items for local building industry groups this year was the scheduled phasing in of the new Stormwater Management regulations which were to apply to projects that had not achieved “final approval” for their erosion and sediment control and stormwater management plans by May 4, 2010.

THE CONCERNS:

The stormwater management regulations implementing the 2007 Stormwater Management Act were causing a lot of concern to developers and builders mainly for two reasons:

1. The grandfathering provisions were not very favorable for projects in the pipeline that may not be able to achieve “final approval” prior to May 4, 2010; and
2. The regulations as written may have had the effect of making infill development and redevelopment more difficult and therefore less attractive as a development site – especially problematic since a major tenement of “Smart Growth” relates to reducing suburban sprawl through infill development and redevelopment of existing sites.

Building and housing industry groups were gearing up to testify before the House Environmental Matters Committee on HB 1125 on Wednesday, March 10^th, but this meeting was canceled in light of the announcement that a new compromise had been reached (kudos to MML, MACo, NAIOP, CBF, 1000 Friends, MDE and MSBA for their roles in reaching this agreement). Under the compromise agreement, Maryland Department of the Environment will issue emergency regulations to revise the stormwater requirements that more fully address these two chief concerns.

THE COMPROMISE:

Grandfathering: Those projects that have received some sort of preliminary approval (but not “final approval”) prior to May 4, 2010, may be granted an administrative waiver by the local jurisdiction. A project that has been granted an administrative waiver will not be required to meet the new regulations, but will be governed by the stormwater ordinance in effect as of May 4, 2009 in the jurisdiction where the project is located. The administrative waiver will expire if the project does not attain “final approval” by May 4, 2013, or begin construction before May 4, 2017. 

The administrative waiver may be extended, but ONLY IF the project has received a “Preliminary Project Approval” prior to May 4, 2010 AND was subject to a Development Rights and Responsibilities Agreement, a Tax Increment Financing approval, or an Annexation Agreement. An extension granted under this circumstance will expire when the DRRA, TIF, or Annexation Agreement expires.

Redevelopment Sites: The emergency legislation will define redevelopment as “any construction, alteration, or improvement performed on sites where existing land use is commercial, industrial, institutional, or multifamily residential and the existing site impervious area exceeds 40 percent.” 

For all redevelopment projects, the stormwater regulations require reducing imperviousness, implementing ESD to the MEP to provide water quality treatment for one-inch of rainfall, or using some combination of these for at least 50% of the existing impervious area.

There are several alternative stormwater management measures that may be considered if addressing 50% of the site’s impervious area cannot be accomplished. These include a combination of ESD and on-site or off-site structural Best Management Practices (BMPs), or other options including:

• participation in a stream restoration project;
• pollution trading with another entity;
• Watershed Management Plans;
• payment of a fee-in-lieu; and/or
• Partial Waiver of the treatment requirement to the extent that ESD is not practicable.

In deciding what alternatives measures may be required, a local government may consider:

• whether the project is in an area targeted for development incentives, such as a PFA, a designated Transit Oriented Development (TOD) area, or a designated BRAC Revitalization and Incentive Zone;
• whether the project is necessary to accommodate growth consistent with comprehensive plans; and
• whether bonding and/or financing has already been secured based on an approved development plan.

CONCLUSIONS:

I think this is a good compromise for all: it doesn't water down (pardon the cheesy pun) the intent of the Stormwater Management Act because all new projects will be required to comply with the new regulations - but it does give those projects that have made substantial progress fair footing in terms of allowing them to be constructed according to the rules in which they began the often costly and time intensive process of developing property. The next step, of course, will be the drafting of the emergency regulations implementing the terms of the compromise. I'll track the progress here to keep you posted.

For more information, check out this story in today's edition of the Baltimore Sun by Timothy B. Wheeler.  Hat tip also to the Maryland-National Capital Building Industry Association for their advocacy efforts on behalf of their members and the industry.

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